The Federal Communications Commission (FCC) adopted the policy known as net neutrality in February 2015 by reclassifying broadband under Title II of the Communications Act and regulating the internet under its common carrier provisions as a public utility. In the past, even President Obama jumped into the net neutrality debate. Prior to the FCC’s adoption of the order, he stated that the “FCC should reclassify consumer broadband service under Title II of the Telecommunications Act—while at the same time forbearing from rate regulation and other provisions less relevant to broadband services,” essentially urging the FCC to treat broadband service as a utility.
At the time, both Republican Commissioners Ajit Pai and Mike O’Rielly dissented on the basis that the order represented a regulatory overreach by the FCC and that the net neutrality order was a solution in search of a problem. And, while we don’t yet know who we will have at the helm of the FCC in the incoming Trump administration, Commissioner Pai is rumored to be named interim Chair. Also, recently, the Trump transition team announced that Jeffrey Eisenach, who is a visiting scholar at AEI, will be leading the two-person FCC landing team. Eisenach, who has served in senior positions at the Federal Trade Commission and the Office of Management and Budget, will play a key role in determining who the new faces are at the FCC. The other team member is Mark Jamison, a telecommunications studies professor at the University of Florida. Both Eisenach and Jamison have been critical of the Obama administration’s approach to telecom issues like net neutrality, and they’ve questioned whether the agency’s authorities should be pared back.
Despite the still many unknowns, it is nevertheless expected that a roll back of the net neutrality rules will be on the short list of the agenda at the FCC and in Congress. Back in 2014, Donald Trump himself tweeted that “Obama’s attack on the internet is another top down power grab. Net neutrality is the Fairness Doctrine. Will target conservative media.” Under a Republican-led FCC, the FCC could open a new rulemaking that would reverse its 2015 decision to reclassify the internet as a utility, the main critique of most net neutrality opponents. However, expect a more hands off approach from President-elect Trump. Speaking recently on C-SPAN’s “The Communicators” program, Eisenach said “What I don’t think a President Trump would do, and would hope he wouldn’t do, is to intervene to instruct a regulatory agency how to issue a particular regulation.”
The incoming Republican-led 115th Congress also has some tools at its disposal to repeal or weaken the existing net neutrality rules. Republicans have been eager to overturn the FCC’s rules, attempting in the past to use the Congressional Review Act to repeal the rules. However, such efforts failed due to the threat of a certain veto by President Obama. With President-elect Trump in the White House come January, efforts to repeal the net neutrality rules by the most conservative members of the Republican party, who have vigorously opposed any regulation of the internet, may be revitalized.
Also, before the FCC shifted course and decided to regulate broadband services under the legacy common carrier model, there was much discussion about a potential compromise. In early 2015, Senate Commerce Committee Chairman Thune (R-SC) and House Commerce Committee Chairman Upton (R-MI) drafted legislation that would have prohibited broadband providers from blocking websites, slowing connection speeds and charging companies for faster delivery of their content. This proposal, however, was rejected by congressional Democrats. Now, however, in a Republican-controlled Congress and White House, such a proposal may get more traction, as Democrats now have more incentive to negotiate.
